United States District Court, S.D. Ohio, Eastern Division
C. Smith District Judge
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
a habeas corpus case brought by petitioner Gianna Cochran
with the assistance of counsel. It is before the Court for
decision on the Petition (ECF No. 1), the State Court Record
(ECF No. 4), the Return of Writ (ECF No. 5), and
Petitioner's Traverse (ECF No. 10).
Magistrate Judge reference in this case has recently been
transferred to the undersigned to help balance the Magistrate
Judge workload in this District (ECF No. 11).
April 26, 2010, the Franklin County grand jury indicted
Petitioner on eighteen counts of endangering children in
violation of Ohio Revised Code § 2919.22. She waived
jury trial and tried the case to a judge who found her guilty
on twelve counts and not guilty on the remaining six. The
judge sentenced her to five years' imprisonment on each
of the felony counts and six months' imprisonment on each
of the misdemeanor counts, with the felony time to be served
consecutively and the misdemeanor time concurrently.
Thereafter the case generated a complex history which is
recited at length in the Return of Writ and will be adverted
to here only as necessary.
the conclusion of state court proceedings, Cochran filed her
Petition for Writ of Habeas Corpus in this Court on October
25, 2018. Respondent concedes the filing is timely.
pleads the following grounds for relief:
Ground One: The Petitioner was denied due
process when she was convicted without sufficient evidence to
support said convictions.
Supporting Facts: The state failed to
presented [sic] sufficient evidence to support the 9
convictions to Child Endangering.
Ground Two: Petitioner was deprived of her
5th and 14thAmendment rights when the
trial court violated the Sentencing Package doctrine.
Supporting Facts: The trial court violated
Due Process when it intentionally imposed a 25-year sentence
as part of a “package” in violation of the
Ground Three: Petitioner was deprived [of]
effective assistance of counsel when counsel failed to
present exculpatory evidence.
Supporting Facts: Trial counsel failed to
present evidence that would have made a difference in the
(Petition, ECF No. 1, PageID 6, 8, 9.)
One: Insufficient Evidence
First Ground for Relief, Ms. Cochran claims she was convicted
on constitutionally insufficient evidence.
allegation that a verdict was entered upon insufficient
evidence states a claim under the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
Jackson v. Virginia, 443 U.S. 307 (1979); In re
Winship, 397 U.S. 358 (1970); Johnson v. Coyle,
200 F.3d 987, 991 (6th Cir. 2000); Bagby v.
Sowders, 894 F.2d 792, 794 (6th Cir.
1990)(en banc). In order for a conviction to be
constitutionally sound, every element of the crime must be
proved beyond a reasonable doubt. In re Winship, 397
U.S. at 364.
[T]he relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt . . . . This
familiar standard gives full play to the responsibility of
the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319; United States v.
Paige, 470 F.3d 603, 608 (6th Cir. 2006);
United States v. Somerset, 2007 U.S. Dist.
LEXIS 76699 (S.D. Ohio 2007). This rule was recognized in
Ohio law at State v. Jenks, 61 Ohio St.3d 259
(1991). Of course, it is state law which determines the
elements of offenses; but once the state has adopted the
elements, it must then prove each of them beyond a reasonable
doubt. In re Winship, 397 U.S. at 361. A
sufficiency challenge should be assessed against the elements
of the crime, not against the elements set forth in an
erroneous jury instruction. Musacchio v. United
States, 577 U.S.__, 136 S.Ct. 709, 715, 193 L.Ed.2d 639
cases such as Petitioner's challenging the sufficiency of
the evidence and filed after enactment of the Antiterrorism
and Effective Death Penalty Act of 1996 (Pub. L. No. 104-132,
110 Stat. 1214)(the “AEDPA”), two levels of
deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a
petitioner challenges the constitutional sufficiency of the
evidence used to convict him, we are thus bound by two layers
of deference to groups who might view facts differently than
we would. First, as in all sufficiency-of-the-evidence
challenges, we must determine whether, viewing the trial
testimony and exhibits in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979). In doing so, we do not reweigh
the evidence, re-evaluate the credibility of witnesses, or
substitute our judgment for that of the jury. See United
States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993).
Thus, even though we might have not voted to convict a
defendant had we participated in jury deliberations, we must
uphold the jury verdict if any rational trier of fact could
have found the defendant guilty after resolving all disputes
in favor of the prosecution. Second, even were we to conclude
that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas
review, we must still defer to the state appellate
court's sufficiency determination as long as it is not
unreasonable. See 28 U.S.C. § 2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th
Cir. 2009). In a sufficiency of the evidence habeas corpus
case, deference should be given to the trier-of-fact's
verdict under Jackson and then to the appellate
court's consideration of that verdict, as commanded by
AEDPA. Tucker v. Palmer, 541 F.3d 652
(6th Cir. 2008); accord Davis v. Lafler,
658 F.3d 525, 531 (6th Cir. 2011)(en
banc); Parker v. Matthews, 567 U.S. 37, 43
(2012). Notably, “a court may sustain a conviction
based upon nothing more than circumstantial evidence.”
Stewart v. Wolfenbarger, 595 F.3d 647, 656
(6th Cir. 2010).
We have made clear that Jackson claims face a high
bar in federal habeas proceedings because they are subject to
two layers of judicial deference. First, on direct appeal,
"it is the responsibility of the jury -- not the court
-- to decide what conclusions should be drawn from evidence
admitted at trial. A reviewing court may set aside the
jury's verdict on the ground of insufficient evidence
only if no rational trier of fact could have agreed with the
jury." Cavazos v. Smith, 565 U.S. 1');">565 U.S. 1, , 132
S.Ct. 2, 181 L.Ed.2d 311, 313 (2011) (per curiam).
And second, on habeas review, "a federal court may not
overturn a state court decision rejecting a sufficiency of
the evidence challenge simply because the federal court
disagrees with the state court. The federal court instead may
do so only if the state court decision was 'objectively
unreasonable.'" Ibid. (quoting Renico
v. Lett, 559 U.S. , , 130 S.Ct. 1855, 1862,
176 L.Ed.2d 678 (2010)).
Coleman v. Johnson, 566 U.S. 650, 651 (2012)(per
curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam).
claim was presented as Cochran's first assignment of
error on direct appeal and overruled. State v.
Cochran, 2012-Ohio-5899 (10th Dist. Dec. 13,
2012). Respondent claims this First Ground for Relief is
procedurally defaulted because Cochran did not appeal from
the adverse decision of the Tenth District Court of Appeals
(“Tenth District”) to the Supreme Court of Ohio
(Return, ECF No. 5, PageID 761). Cochran counters that she
presented this claim in her Memorandum in Support of
Jurisdiction in Ohio Supreme Court No. 2013-464 (Traverse,
ECF No. 10, PageID 807).
record reflects that the Tenth District entered judgment on
Cochran's direct appeal on December 13, 2012 (State Court
Record, ECF No. 4, Ex. 13, PageID 134-35). Cochran moved for
reconsideration by that court. Id. Ex. 14 at PageID
174, et seq. The Tenth District denied that motion
on February 5, 2013. Id. Ex. 16 at PageID 186,
et seq. Only after that did Cochran appeal to the
Supreme Court of Ohio, and her Notice of Appeal makes it
clear she is appealing from the February 5, 2013, decision on
the motion to reconsider. Id. at Ex. 17 at PageID
193, et seq.
Memorandum in Support of Jurisdiction, Cochran does raise her
insufficiency of the evidence claim as Proposition of Law II.
(State Court Record, ECF No. 4, Ex. 18 at PageID 196. In
opposing jurisdiction, the State responded on the merits to
Proposition II. Id. at Ex. 19 at PageID 227-29.
However, the Supreme Court of Ohio accepted jurisdiction only
on Proposition of Law I (Entry, State Court Record, ECF No.
4, PageID 232.)
Return, Respondent acknowledges that the insufficiency claim
was raised, but notes that it was not done in accordance with
the Supreme Court Rules of Practice. Those Rules provide that
filing a motion for reconsideration in the court of appeals
tolls the time for appealing to the Ohio Supreme Court. Ohio
S.Ct.Prac.R. 7.01(A)(5)(a). Once the court of appeals renders
a decision on the motion for reconsideration, a litigant has
the usual forty-five days to appeal and the Rule provides the
papers that must be filed with that notice. Id. at
7.01(A)(5)(c). While Cochran's appeal to the Supreme
Court of Ohio was timely, she did not include all the papers
required by the just-cited rule. That is, she only indicated
she was appealing from the February 2013 ruling, not the
December 2012 ruling. (See Notice of Appeal, State Court
Record, ECF No. 4, Ex. 17.)
procedural default doctrine in habeas corpus is described by
the Supreme Court as follows:
In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an adequate and
independent state procedural rule, federal habeas review of
the claims is barred unless the prisoner can demonstrate
cause of the default and actual prejudice as a result of the
alleged violation of federal law; or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991);
see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not
raise on federal habeas a federal constitutional rights claim
he could not raise in state court because of procedural
default. Wainwright v. Sykes, 433 U.S. 72 (1977);
Engle v. Isaac, 456 U.S. 107, 110 (1982).
“[A]bsent cause and prejudice, ‘a federal habeas
petitioner who fails to comply with a State's rules of
procedure waives his right to federal habeas corpus
review.'” Boyle v. Million, 201 F.3d 711,
716 (6th Cir. 2000)(quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996);
Murray v. Carrier, 477 U.S. 478, 485 (1986);